853 F.

2d 816
97 A.L.R.Fed. 647

UNITED STATES of America, Plaintiff-Appellant,

v.
Larry Douglas FRIESEN, Defendant-Appellee.
No. 88-1189.

United States Court of Appeals,

Tenth Circuit.
Aug. 10, 1988.

Kim I. Martin, Asst. U.S. Atty. (Benjamin L. Burgess, Jr., U.S. Atty., with
her on the brief) Wichita, Kan., for plaintiff-appellant.
Larry Douglas Friesen, Oklahoma City, Okl., pro se.
Before MOORE and BALDOCK, Circuit Judges, and PARKER, District
Judge.*
JOHN P. MOORE, Circuit Judge.

Larry Douglas Friesen, an attorney, was charged with conspiracy to knowingly

and intentionally manufacture cocaine in violation of 21 U.S.C. Secs. 841(a)(1),
846 and 843, and 18 U.S.C. Sec. 2. He was found not guilty on all counts and
subsequently moved to have expunged all records referring to his arrest. The
predicate for this relief was his assertion, "The defendant is currently being
grievously injured because by the retention of the ... records ... [he] is being
damaged in terms of employment availability, reputation in the community, and
possible denial of professional licensing." Without taking evidence on this
assertion, the trial court determined Mr. Friesen was "caught up in a series of
events which gave rise to the forfeiture of his license to practice law, and his
arrest and jury trial only served to compound his problem." The court also
stated, "While the fact that a person has simply been arrested for some offense
should not in and of itself be an obstacle to any fair-minded individual, the fact
that a person has been arrested for some drug-related offense surely may."
Upon this premise, the court ordered expunction.

The government's appeal from this order presents the issue of whether the
district court abused its discretion by ordering expunction of an arrest record
without a factual showing of harm or "extreme circumstances." We conclude
the trial court could not exercise its discretion to order expunction without such
a showing. Accordingly, we reverse and remand.

The government's appeal is focused upon the trial court's failure to find
"extreme circumstances" which would justify the expunction order. It is
contended that the court's power to expunge arrest records is "exceedingly
narrow" and to be applied only in the most unusual circumstances. Sullivan v.
Murphy, 478 F.2d 938 (D.C.Cir.1973) (mass arrest where probable cause
impossible to determine); United States v. McLeod, 385 F.2d 734 (5th
Cir.1967) (purpose of arrest to harass civil rights workers); Kowall v. United
States, 53 F.R.D. 211 (W.D.Mich.1971) (arrest based on statute held
unconstitutional). Contending Congress has required maintenance of arrest
records by the Attorney General, 28 U.S.C. Sec. 534(a), the government argues
the court cannot order expunction simply because a defendant was found not
guilty. United States v. Linn, 513 F.2d 925 (10th Cir.), cert. denied, 423 U.S.
836, 96 S.Ct. 63, 46 L.Ed.2d 55 (1975).

Defendant ripostes with the argument that the potential for harm to him is so
great the expunction of his record is the only protection he has from
unauthorized release of the facts relating to his arrest. He contends also the
arrest for a drug-related offense is stigmatizing in current society; hence the
trial court properly exercised its discretion.

Our analysis begins with the principle that the district court has the authority to
order expunction, but the power is not unfettered. Expunction is committed to
the discretion of the trial court, but it is not a remedy to be granted frequently.
Indeed, mere acquittal of the subsequent charge is an insufficient reason to
grant expunction. Linn, 513 F.2d at 927. As we noted in Linn: "[T]he power to
expunge an arrest record is a narrow one, and should not be routinely used
whenever a criminal prosecution ends in an acquittal, but should be reserved for
the unusual or extreme case." Id.

We find significant parallels between this case and Linn. In that case, the
defendant seeking expunction is an attorney who claimed, following acquittal,
abusive dissemination of his arrest record was likely. Linn also contended the
record could be used to affect his professional reputation and that perpetuation
of the record was of no use to society. However, we noted in Linn, as here, the
arrest was lawful, and there was sufficient evidence of guilt for the jury to

consider. Those similarities notwithstanding, this case has an additional

dimension which requires further inquiry.
7

The trial court believed Mr. Friesen's arrest resulted in a stigma that acquittal
would not absolve. It was assumed that drug offenses may bear an opprobrium
not inherent in other crimes; therefore, an arrest for a drug offense may result in
that kind of harm to a defendant which can be removed only by expunction.

Yet, we can find no factual basis in this record which supports these
assumptions. The trial court took no evidence to determine how Mr. Friesen's
arrest affected his private or professional life. Nor did the papers filed by
defendant provide such facts to the court. Finally, the court made no findings of
fact for us to review so that we might determine whether the court abused its
discretion.

The record before us suggests the court based its judgment only upon the
unsupported conclusions set forth in defendant's motion for expunction that he
was being "grievously injured" and "damaged in terms of employment
availability, reputation in the community, and possible denial of professional
licensing." If true, and if found by the trial court to be unusually compelling
circumstances, these may be reasons to justify the exercise of the trial court's
"narrow" power to order expunction. Until those facts are properly established
in an adversary proceeding, however, we cannot review the trial court's
judgment under the abuse of discretion standard which guides us. Accordingly,
the order of the district court is REVERSED and the case REMANDED for the
purpose of holding an evidentiary hearing and making findings of fact.

Honorable James A. Parker, United States District Judge for the District of
New Mexico, sitting by designation